


Purely Commercial Speech

by bluebeholder



Category: Pacific Rim (Movies), Supreme Court of the United States
Genre: Budweiser, Commercials, Gen, Lawsuits, Legal Drama, No Value Speech, Pan Pacific Defense Corps, the occasional inanity of first amendment case law in the us
Language: English
Status: Completed
Published: 2020-06-05
Updated: 2020-06-05
Packaged: 2021-03-03 21:27:05
Rating: General Audiences
Warnings: No Archive Warnings Apply
Chapters: 1
Words: 1,052
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/24562342
Author URL: https://archiveofourown.org/users/bluebeholder/pseuds/bluebeholder
Summary: As the Jaeger Program establishes itself, companies rush to capitalize on this new opportunity. Anheuser-Busch, through its Budweiser property, tries to air a commercial in support of the Jaegers. When the Federal Trade Commission bans the commercial, the only thing left is for Anheuser-Busch to do the only American thing to do in such a circumstance:Sue the government.
Comments: 8
Kudos: 15
Collections: Banned Together Bingo 2020





	Purely Commercial Speech

**Author's Note:**

> _This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion, and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. **We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.**_  
>  — _Valentine v. Chrestensen_ , 316 U.S. 52 (1942)
> 
> Unfortunately, AO3’s Terms of Service wouldn’t allow me to straight-up write a piece of commercial speech and post it here. In order to work with the spirit of the prompt, I’ve written a fic concerning how “no value” speech might get restricted _within an established media universe_.
> 
> And fair warning: this is literally a wall of technical jargon. My beta reader said it was good, but still. Abandon all hope, ye who enter here!

Among proliferation of new Shatterdomes around the Pacific Rim in the two years after the foundation of the Pan-Pacific Defense Corps (PPDC), public support of the new Jaeger program ran extraordinarily high. Marches in support of the PPDC were common and public testimonials of those saved by the Jaegers during kaiju attacks drew hundreds of thousands of views online. Businesses were quick to capitalize on that support, proposing partnerships with celebrity Jaeger pilots, acquiring the rights to images for merchandising, and brokering deals as suppliers to the Shatterdomes.

The following is an unedited transcript of the 45-second-long Budweiser commercial intended for air during the 2017 Super Bowl (one of the last before public investment in professional sports began to decline in the face of the assault of the kaiju).

* * *

[A rising sun over a field of amber grain. An arrangement of music reminiscent of Copeland’s _Fanfare for the Common Man_ begins to play.]

VOICE-OVER (a smooth, apparently male voice): These are our lives.

[A few brief scenes follow. Smiling high school graduates walk across a stage. A white grandmother brings a turkey to the Thanksgiving table. A Latino family is seen having a party in the backyard. A black father pushes his child on a swing. A farmer sits on a porch, a bottle of Budweiser beer in her hand.]

VOICE-OVER: And these are the heroes who defend them.

[More brief scenes. A nobly-posed Jaeger pilot of indeterminate gender stands in silhouette looking out over the ocean. A pair of pilots spar fiercely with staves. An officer of Asian descent gives a briefing to solemn pilots. A scientist holds a vial up to the light and furrows his brow. A mechanic wipes her brow as she works on heavy machinery.]

VOICE-OVER: Without their unfailing work, our lives would be forever changed. But even heroes deserve a chance to sit back and relax.

[Pilots are shown laughing around a table, Budweiser beer in evidence. A father and son, the son wearing a PPDC uniform, clink Budweiser beer bottles together. A pilot in a full Drivesuit, helmet under his arm, strides from the cockpit of a Jaeger into the midst of a celebration, where a can of Budweiser is handed to him. He is not shown taking a drink, and the can is unopened.]

VOICE-OVER: We celebrate the lives of our heroes, just as we celebrate our own.

[The iconic team of majestic bay Clydesdales draws the Budweiser beer wagon along a tarmac. As the camera pulls back, the horses and wagon rapidly dwindle in size as the massive Jaeger they run before comes into focus, towering above them with the sun setting behind it over the Pacific Ocean.]

VOICE-OVER: At Budweiser, we salute the Pan-Pacific Defense Corps.

[The image fades to black, with the Budweiser logo presented in the gleaming silver of Jaeger armor. In small white font at the bottom of the screen are the words “Please drink responsibly.” As the logo and music fade, the whirr of Jaeger servos can briefly be heard before the advertisement ends.]

* * *

After review by the Federal Trade Commission, this commercial was not shown during the Super Bowl. Advertisements are not typically reviewed by the FTC prior to airing; however, in this case, concerns were raised by PPDC officials, and the FTC took action in response. The FTC’s initial reasoning behind the ban was simply that the affiliation of Jaeger pilots with alcohol could be construed as an encouragement of dangerous activity—i.e. “drinking and driving.”

Prior to the Super Bowl, Budweiser was able to film a new commercial—unrelated to the PPDC or Jaeger Program—to fill its slot. Many observers noted that it seemed that Budweiser did not get the return on investment of cost of the commercial slot, the cost of filming the original commercial, and the cost of filming the second commercial. As a result, Budweiser sued the FTC for the damages they claimed they had suffered, both known in terms of commercial cost and the projected revenue not gained by airing the original commercial.

The suit was put forth on the grounds that the FTC had violated Budweiser’s First Amendment protections. Budweiser claimed that the original rationale the FTC gave for the ban, “encouragement of dangerous activity,” was illegitimate—the ad was not deceptive and contained only depictions of lawful activity. On these grounds, Budweiser claimed that the FTC had overstepped its Constitutional grounds.

Over several months, the high-profile case fought its way back and forth to the Supreme Court. During this time, the original commercial was leaked and widely disseminated, with a majority of viewers agreeing with Budweiser that the FTC was in the wrong.

The ruling of the Supreme Court was clear: the FTC had not violated Budweiser’s First Amendment rights, reversing the decision of the lower courts on the matter. The Court, however, did not accept the FTC’s reasoning. The majority opinion was written by Associate Justice Samuel Alito, joined by five other justices (of the remaining three justices, there were two concurring opinions and one dissenting).

The opinion primarily cited the test established in _Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 _as the reasoning for the decision. While the Court acknowledged that Budweiser was correct that its commercial was both truthful and strictly lawful, the Court also ruled that the commercial fell victim to the remainder of the test. As the commercial carried images and relation to the PPDC—an affiliate of the U.S. Federal Government—the government had a substantial interest in regulation of speech relating to the PPDC.

In the case of this commercial, the Court ruled that this substantial interest in preserving the credibility of the PPDC was directly and materially advanced by banning Budweiser’s commercial. In addition, the Court ruled that, in this circumstance, the only way to narrowly tailor the regulation of speech was to ban the commercial. According to the opinion, “[i]t is an unfortunate fact that, when the entire commercial contains the offending material, there is no more narrow way to tailor the restriction than to simply cut it all away.”

The precedent set in _Anheuser-Busch v. FTC_ (2017) would go on to regulate commercial speech related to the PPDC and Jaeger Program through to the final days of the Program.

**Author's Note:**

> For the Banned Together Bingo 2020 event, I received a square for “No Value,” a reason that speech should be censored. The example given is of speech that “lacks serious literary, artistic, scientific, or political value,” as articulated in the Miller Test used by the United States Supreme Court to determine whether a work is obscene and can be regulated. This is a perfectly valid interpretation of “No Value,” but the Constitutional Law nerd in me found this prompt just BEGGING to tackle an older and somehow more blindingly ridiculous restriction on speech. 
> 
> The case _Valentine v. Chrestensen_ , 316 U.S. 52 (1942) determined that commercial speech has no value and is not protected under the First Amendment. It’s a fascinating case and I recommend looking it up. The ruling has become more complex with time: as of _Central Hudson Gas and Electric Corp. v. Public Service Commission_ (1980), there is a four-part test to determine whether or not commercial speech should be protected by the First Amendment. If the speech is truthful and concerns strictly lawful activity, then the government may only restrict it if it has a substantial interest in regulation AND that substantial interest is directly and materially advanced by the regulation AND that the regulation is narrowly tailored (legal term of art I won’t dig into here). 
> 
> I could go on and on and _on_ about why a company like Budweiser has First Amendment rights and how ridiculous it is that they do, but that’s for another place and time!
> 
> Also, I’m pretty sure this is the only fic on AO3 including Samuel J. Alito as a POV character. I ended up reading his entire majority opinion in _Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, 585 U.S._ (abbreviated Janus v. AFSCME) because I was trying to nail down his writing style. Coincidentally, that case is also a First Amendment challenge (dealing with unions and compelled speech in unions etc etc etc). 
> 
> Oh, and I had to put it as “Anheuser-Busch v. FTC (2017)” because there are a PLETHORA of other Anheuser-Busch v. FTC cases. AAAAAAAAAAA.


End file.
